[Defendant]
[Appellant] Defendant
[Defense Counsel] Attorney Kwon Du-seop and 1 other
[Judgment Below] Seoul Central District Court Decision 2008No4406 rendered on April 9, 2009
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Seoul Central District Court.
[Reasoning]
The grounds of appeal are examined.
The crime of obstruction of business is established where a person obstructs another's business by deceptive scheme or force (Article 314(1) of the Criminal Act (형법)). Here, "force" refers to any force capable of suppressing or confusing a person's free will.
A strike, as an act of dispute in which workers refuse to provide labor for the purpose of achieving their demands and thereby impede the normal operation of business, is not merely a refusal to provide labor pursuant to an employment contract, but goes beyond that to constitute an exercise of force whereby workers collectively cease to provide labor in order to pressure the employer and achieve their demands; thus, it contains elements corresponding to "force" as referred to in the crime of obstruction of business.
However, workers, in principle, hold, as fundamental rights guaranteed under the Constitution, the independent rights to organize, to bargain collectively, and to act collectively for the improvement of working conditions (Article 33(1) of the Constitution (헌법)). Although these rights may be restricted for reasons of public interest such as national security, maintenance of order, or public welfare pursuant to Article 37(2) of the Constitution, and are subject to the inherent limitation that their exercise must be legitimate, and thus are not absolute rights.
Therefore, a strike as an act of dispute should not always be regarded as constituting the crime of obstruction of business. Rather, it is appropriate to hold that the crime of obstruction of business is established only where, in light of the surrounding circumstances and background, the strike is carried out abruptly at a time unforeseeable by the employer, thereby causing severe disruption to or enormous damage to the employer's business operations, such that it can be evaluated that the employer's free will regarding the continuation of business could be suppressed or thrown into confusion; only in such a case does the collective refusal to provide labor amount to "force," giving rise to the crime of obstruction of business (see Supreme Court en banc Decision 2007Do482 rendered on March 17, 2011).
The court below, upon comprehensively considering the evidence it adopted, found the facts as stated in its reasoning, and then determined that the strike of July 2, 2008 at issue in this case, having as its main purpose opposition to the importation of American beef and the like—matters that cannot be the subject of collective bargaining—constituted an unlawful strike in which the act of dispute as a whole lacked legitimacy. In so doing, the court below rejected the defendant's argument that the strike was instead a so-called "concentrated-timing simultaneous strike," in which the timing of collective bargaining and acts of dispute by enterprise-level labor unions, which tend to be concentrated in the first half of each year, were consolidated into a single period, and that the main dispute objectives of each enterprise-level labor union were matters such as wages and the conclusion of collective agreements.
Upon examining the reasoning of the judgment below in light of the record, the above determination of the court below is justified and may be accepted.
However, as to whether the strike of July 2, 2008 at issue in this case was carried out abruptly at a time unforeseeable by the individual employer who was the victim, thereby causing severe disruption to or enormous damage to the individual employer's business operations, the facts charged in this portion of the indictment designate as victimized workplaces even workplaces where, in light of the scale of the strike—such as where only 2 out of 100 workers participated in a 2-hour strike for the purpose of attending a regional rally—it cannot be said that severe disruption or enormous damage was caused to the employer's business operations. In light of this, there is room to find that, among the workplaces designated in this portion of the facts charged, some do not fall under circumstances in which it can be evaluated that the employer's free will regarding the continuation of business could be suppressed or thrown into confusion.
Nevertheless, the court below, without properly examining and determining the above circumstances, summarily concluded that the defendant's acts constituted the crime of obstruction of business and found the defendant guilty as to the entirety of this portion of the facts charged. This portion of the judgment below thus contains an error of misunderstanding the legal principles concerning the crime of obstruction of business, which affected the outcome of the judgment.
Accordingly, the portion of the judgment below concerning each obstruction of business arising from the strike of July 2, 2008 must be reversed. However, since the court below regarded this portion as being in a concurrent-crime relationship under the first part of Article 37 of the Criminal Act (형법) with the remaining criminal facts and imposed a single sentence, the judgment below must be reversed in its entirety.
Therefore, the judgment below is reversed, and the case is remanded to the court below for further examination and determination, and it is so decided as stated in the Order, by the unanimous opinion of the participating Justices.
Justices Yang Chang-su (Presiding Justice), Kim Ji-hyung (Justice in Charge), Jeon Su-an, Lee Sang-hoon